Dem
51
GOP
49
While Kamala Harris might keep on a few members of Joe Biden's cabinet, albeit in new positions (Pete Buttigieg comes to mind), no one expects her to keep AG Merrick Garland. He has come in for much too much criticism, especially from Democrats.
For one thing, many Democrats feel that appointing the very partisan Robert Hur to investigate Biden's minor mishandling of government documents was uncalled for and allowed the media to exhibit their well-loved bothsidesism practices. Donald Trump stole hundreds of classified documents, stored them in his bathroom, and refused to give them back even after being requested to do that many times. Biden had a few documents in a box in his garage and as soon as he found them, immediately gave them back.
For another, Garland tolerated David Weiss' endless investigation of Hunter Biden for things no ordinary citizen would be charged for (saying he was not a drug addict when he purchased a gun, something that might well have been true at the moment of purchase).
Finally, and worst of all, he dawdled forever on seeing that Donald Trump was charged with stealing government documents and trying to steal the 2020 election. He could have had the DoJ handle the case directly or appointed a special prosecutor much earlier than he did and given the special prosecutor orders to move fast.
So Garland is certainly a goner. Who gets his job if Harris wins? Maybe Harris' brother-in-law, Tony West. Nepotism? Not really. In the Obama administration, he was assistant AG in the Civil Division, the largest litigating division in the DoJ. He was confirmed by the Senate 98-1. In that position, he won billions in settlements in cases involving financial institutions that had cheated customers. The cases against Bank of America and J.P. Morgan Chase were the biggest, resulting in the DoJ recovering $37 billion from them. He also won a number of other important cases. But an anti-nepotism law going back to the reaction to Jack Kennedy appointing his brother, Bobby, as AG, could be an obstacle.
Another possibility is Vanita Gupta, who ran the Civil Rights Division for Obama. She has a strong track record and support in Congress.
The current deputy AG, Lisa Monaco, is probably well qualified, but is too closely associated with Garland, and that could be fatal. A deputy AG during the Obama administration, Sally Yates, has the same experience as Monaco and none of the baggage. Still another possibility is Preet Bharara, who was U.S. attorney in the SDNY and is very well known and very aggressive.
There is some speculation that Gov. Roy Cooper (D-NC) might be a candidate, but he is probably more interested in challenging Sen. Thom Tillis (R-NC) in 2026. Gov. Maura Healey (D-MA) used to be a state AG, but she just got elected as governor and is unlikely to take the job if offered.
But names aside, a bigger debate going on is what kind of AG Harris would want. Many Democrats feel that what is needed is a bold figure who will aggressively enforce the law, even against high-placed and wealthy people accused of breaking the law, starting with Donald Trump. The biggest complaint against Garland is that he delayed far too long going after Trump. Democrats don't want that to happen again if there are serious allegations against some powerful politician or business leader.
It will be an important appointment, maybe her most important one. But if Republicans control the Senate, if she picks someone who is known to be aggressive, the nominee could be voted down in a party-line vote. One aggressive candidate who might be confirmed, though, is Gupta because Sen. Lisa Murkowski (R-AK) might be willing to break ranks to get a woman confirmed. In a 49-51 Senate, the majority leader would have relatively little leverage against her due to the omnipresent threat of her becoming an independent who caucuses with the Democrats. If Republicans control the Senate by two seats, Harris is likely to discuss all nominations in advance with Murkowski and choose only candidates she approves of. (V)